The subclass 400 visa is commonly used by businesses that need workers in Australia on a short-term basis to complete non-ongoing highly specialised work. The visa can be granted for up to 3 or 6 months, depending on the business case put to the Department, with the general expectation being the ‘non-ongoing’ work will be completed within 3 months.
In August 2024, the Department of Home Affairs significantly amended their subclass 400 visa policy. The general theme of the change is that the Department will now place greater emphasis on scrutinising these applications to ensure businesses are not using the visa as a quick and cheap alternative to the subclass 482 visa, where work is not in fact ‘non-ongoing’. The motivation behind this change is to ensure Australian citizens and permanent residents are not disadvantaged in the job market.
While the changes to policy are extensive, two notable changes relate to policy on ‘scrutinising longer term stays’ and ‘return visits’.
Scrutinising longer term stays
Under current subclass 400 visa policy, case officers are expected to closely scrutinise applications that will result in a worker being in Australia for more than 3 months over a 12 month period. This does not mean application for visa durations of 6 months will be unsuccessful, but it appears such visa grants are expected to be an exception to the general rule.
Situations in which we expect 6 months subclass 400 grants to be unlikely are:
- Applications from citizens of countries with significantly lower incomes than Australia
- Where an employer is intending to fulfil multiple separate contracts
- Lower skilled roles (ANZSCO skill level 4 or 5)
Return visits
Former Departmental policy included specific reference to a flexible approach to the ‘non-ongoing’ work requirement, and a case by case assessment approach to applications where workers submit multiple subclass 400 visa applications over a 12 month period. Reference to such flexibility has now been removed.
Current policy highlights to case officers that they may consider granting multiple subclass 400 visas over a 12 month period, where doing so will not result in visa holders being in Australia for more than 3 months over a 12 month period. This is a significant reduction from former policy, which referred to approving applications where the total stay would not exceed 6 months over a 12 month period.
Where subclass 400 applicants have previously held 400 visas within the past 12 months, case officers are encouraged to grant subsequent subclass 400 visas with a duration consistent with the balance remaining of a total 3 month stay over a 12 month period. For example, a worker comes to Australia for 6 weeks in February. The worker then applies for a further 3 month visa in September. The Department may then grant the second subclass 400 visa for 6 weeks, to allow the worker a total of 3 months in Australia over a 12 month period.
Employers should keep these policy changes in mind when considering whether a subclass 400 or 482 visa is most appropriate. Employers should not approach a subclass 400 visa with the expectation that a request for a 6 month visa will be approved. If you would like to discuss the most appropriate visa options for your employees, please contact us.
